The sun. [volume] (Morris, Stevens County, Minn.) 1882-1895, 1887-07-07

mons, because he asks the court TO
do something besides decide on Its
own jurisdiction.
Curtis VS.. Cordelia, 33 Minn.. 268.
1t is difficult to see how the court
may order judgment either In favor
Of or against party over whom it
has no jurisdiction. If this appear
ance had heen made before judgment
l should not hesitate to decide it
general; but coming. as it does, after
Judgment 1t presents different
aspect. anI not having been argued
by counsel do not decide it. 1t is u
doubtful question.
Kenna VS.. II. r.. Co., 80 Minn.. 4l9.
General statutes chap. 88, sec. 50.
provides, among other ways. that the
summons should he served "by deliv-
ering copy thereof to the defendant
personally, or by leaving copy at the
house of his usual abode. with some
person Of suitable age and discretion
tnen feSluenC tHcreln.
In this action the officer certlfies
that she served the within summons
and complaint on +. II. Bonstad. the
within named defendant. by leaving
a copy of the summons and complaint
at the house of his usual abode. with
Agnes G. Donstead, a person of suit
able age and discretion then resident
therein, at the town of Campbell, in
said county Of Wilkin, on the ed
day OF January, A. D. 1887" No
point is made us to the sufliciency of
the return itself. Nor is there any
dispute but that the summons and
complaint were served by leaving
copies thereof at the town of Camp
bell. in said county, with the defend
ants wife. The only controversy
being as TO whether the particular
house was ''the house OF defendants
usual abode" The plaintiff claims
that 1t was, and the defendant that
it WAS not. II it was not it is clear
that the court acquired no jurisdic-
ton by the service and that the judg-
ment is void.
lIeffner vs.. GUM, 20 Mimi, 1O8.
In his affidavit in support of the
motion, the defendant says, that the
house, or rooms rs termed by him,
twas never his house, and that he
had never lived therein: and that his
wife was only there upon a visit to
her daughter who was then sick
therein" And he says further that
he never lived in the town Of Camp
bell. He is corroborated in these
statements by his wife, who swears
that she has read The affidavit of her
husband and knows it's contents, and
that all the facts therein stated in
regard to her husbands residence are
true.
The return of an officer Of the serv-
ice Of summons in a manner pre-
scribed by statute gives the court
jurisdiction to proceed in the action,
and such return has been held con-
elusive.
Farasein vs.. Williams, Is Mimi.
2i9.
But the decision in that case was
doubted in Jensen vs.. Crevier, 80
MIMI, 372, and on the authority of
this last decision l think the return
may be contradicted, particularly
upon such question as is presented
here. This being so, and the officers
return being directly contraGicted by
the affidavits of defendant and his
wife, rs to his place of abode, it de-
wolves upon the plaintiff to show that
this particular house was the defend
ants abode, If such was in truth the
fact. To establish this fact and to
corroborate the return of the officer
the plaintiff has presented several
aflidavits bearing of the question.
These affidavits have been carefully
read and considered and they do not.
in the face of defendants fiat denial,
satisfy me that this particular house
was defendants usual place of abode.
l have come to this conclusion after
due reflection, and believe I am right,
and therefore pronounce it. The aft
davit of Mr.. Oliver shows nothing
more than that the defendant inten.
ded to reside at Campbell, and that
he was going to try and get work for
the winter with headquarters with
his family at Campbell, but whether
this intention was carried out, or
whether he got work as desired does
not appear. The statement of the
sheriff, and also Mr.. Sherman, that
the defendant admitted to them ''tlat
the sheriff told the truth when he
made the return, etc. is too broad
and general to outweigh the defend
ants denial that he had ever lived in
the town of Campbell, or that this
house was ever his place of abode,
inasmucl as it does not appear that
his attention was called to the partic-
ular question of his abode at the time
of the admission or in connection
with it. In the affidavit Of Mr..
Errett are some broad conclusions
which the court might have drawn
from the facts had they been stated.
But above all other persons within
p.thd ftapparent reach of the plaintiff it
ksedms tAaf.Mr. Er1et ought to have
Fbef Saslds tqsSAS abiKiiyth. some degree
eT eftlaiHtynSih eth epithis- particular
EAp| ,s slsSR u TN gsRsjasA
- dcsuJf AsG0dao1l BntbI3aoIaoes not.
lie wa}o tniMfg7 8waiA'iT o,Hs house and
had rooms there, for rent. But